Tilburg University
Human rights in translation
Griek, I.
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2014
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Griek, I. (2014). Human rights in translation: Dispute resolution in the Bhutanese refugee camps in Nepal . Wolf Legal Publishers (WLP).
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Dispute resolution
in the Bhutanese refugee camps in Nepal
Dispute resolution in the Bhutanese refugee camps in Nepal
Ilse Griek
ISBN: 9789090282961
Cover Image:
Food aid delivery in Beldangi-2 refugee camp, Nepal. © Ilse Griek
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Dispute resolution
in the Bhutanese refugee camps in Nepal
Proefschrift ter verkrijging van de graad van doctor aan Tilburg University op gezag van de rector magnificus, prof. dr. Ph. Eijlander, in het openbaar te verdedigen ten overstaan van een door het college voor promoties aangewezen commissie in de aula van de Universiteit op woensdag 18 juni 2014 om 10:15 uur
door
Prof. Dr. B. M. Oomen
Commissieleden:
Prof. dr. em. K. von Benda-Beckmann Prof. dr. J. E. Goldschmidt
Prof. dr. E. M. H. Hirsch Ballin Prof. dr. M. Hutt
Acknowledgements 1
Table of Figures 5
List of Abbreviations 7
Chapter I: Introduction 11
Transnational communities, transnationalised law? 12 Refugee protection and UNHCR’s evolving mandate 15 Protractedness: A humanitarian imperative for understanding law in camps 19 The administration of justice in refugee camps 22
Structure of this book 26
Chapter II: Legal Pluralism in Humanitarian Settings 29
II.1 Delimiting law in a refugee camp 30
State law 31
Customary norms and local law 32
International human rights law 33
‘Project law’ 34
II.2 Project law in humanitarian settings 37
Aid workers as street-level bureaucrats 38
II.3 Theoretical challenges: Capturing transnationalism in law 40 The transnational semi-autonomous social Field (TSASF) 41
Power and politics in law 44
II.4 Methodological approach 47
An ethnographic study of law 48
Measuring access to justice 54
II.5 Conclusion 60
Chapter III: Mapping Transnational Humanitarian Space 61
III.1 Conflict in the Dragon Kingdom: Mythico-histories 61
History: Disputed and contested 63
Seeds of conflict 67
Dissent and flight 69
New outlooks, new attitude to history? 72
III.2 Bamboo, mud, plastic, and thatch: The building blocks of
humanitarian space 75
Refugee camps: Looking in 76
Ordering humanitarian space 78
Physical and mental health 87
Education and vocational training 88
Refugee participation 90
III.4 The camp economy 93
III.5 Re-establishing community in exile 98
‘We Nepalis’ or ‘We Bhutanese’? 100
Refugees, kin, family, and samaaj 104
Collaboration across spatial and kinship lines 107 III.6 Human rights in the camps: A politicised landscape 109
Bhutanese human rights organisations 110
Fragmentation in the political struggle for democracy 111 Implications for local understandings of human rights 113
III.7 Conclusion 115
Chapter IV: Snakes and Ladders: Where legal systems intertwine 117
IV.1 Contours of the camp mediation system 118
Historical antecedents: Dispute resolution in southern Bhutan 118
The Bhutanese refugee legal system 122
Bringing a case: Process and procedure 124
Understanding mediation in the camp context 128
A role for society: The pancha samaaj 131
IV.2 The Nepalese legal system: Institutions and roles 134
Refugee Coordination Unit 135
Armed Police Force 136
Nepal Police 139
Nepalese courts 142
Other (quasi-judicial) institutions 143
IV.3 Support for access to justice 145
Reforming camp dispute resolution practices? 146
IV.4 Navigating legal structures 149
A theft and a basket 150
The case of the stolen sugar 152
Syringes in Beldangi-2 154
IV.5 Whither the twain shall meet? 156
Nepalese law enforcement as extension of the mediation system 156 Personal relationships: Where public and private roles collide 159 Whose jurisdiction? ‘Simple’ versus ‘serious’ cases 162
IV.6 Conclusion 164
Chapter V: Resolving Domestic Violence Disputes 167
V.1 Domestic violence in the Bhutanese refugee camps 167
Cultural attitudes 170
V.3 Project law: SGBV and domestic violence 177
Domestic violence in SGBV policies 178
UNHCR’s Standard Operating Procedures on SGBV in Nepal 179
Enlisting NGOs and CBOs 183
V.4 Inside the Counselling Board: ‘Courtroom’ views of a domestic
violence case 186
Part one: The CWT makes an initial assessment of the case 186 Part two: The Counselling Board identifies the problem 189
Part three: An apology, a promise 192
A cross-section of attitudes to domestic violence 194
V.5 Three women, three legal paths 196
Gita keeps it in the sub-sector 196
Indira gets divorced 198
Arpana’s encounter with the DV Act 201
V.6 Shopping for justice 204
Divorce as justice? 208
What role for project law? 211
V.7 Conclusion 215
Chapter VI: To Divorce, or not to Divorce?
Resettlement and the shift in family conflicts 217
VI.1 Third country resettlement: A new influence on Bhutanese lives 221
Violence and order 226
The creation of a ‘resettlement wish’ 229
Re-orientation of service provision and assistance 230 Brain drain: Impacts on skills and service provision in the camps 230
Transnational contacts: Mediascapes 232
Shifting demographic constellations 233
VI.2 Legally plural bearings on refugee marriages 234
Resettlement project law 235
The US Refugee Admissions Program 237
VI.3 Polygamous marriages and resettlement 239
Polygamy and the law 241
A third wife from the bange 245
VI.4 Minor marriages and resettlement 248
Minor marriage and the law 250
A ‘modern’ minor marriage 253
VI.5 Reframing family disputes: ‘Naming, blaming, claiming’ 256 VI.6 Divorce and the break-up of refugee families 259
Divorce as abandonment 262
VI.7 Explaining the impact on refugee families: Power shifts in the TSASF 264
Power, transparency and information 267
Searching for legal certainty 269
Humanitarian agencies: Sources and proponents of law 275 A dual process of translation: From international law to street-level
bureaucrats 277
A dual process of translation: Local law transnationalised 279 Unanticipated impacts of rights-based programming 281 Human rights: Partially implemented, partially understood,
partially localised 282
From localising rights to access to justice? 284
References 287
I still recall with vivid intensity the first day I visited Beldangi-1 refugee camp in early 2010. I went in with a notebook and came out with new stories, new ideas, and a baby rabbit I bought from an elderly man who sold them in the camps for 150 Nepalese Rupees (approximately 1 Euro) each.
For fourteen months, the Bhutanese refugee camps and Damak – the humanitarian hub beside it – were my home, and for a long time after leaving Nepal I missed waking up to the sound of roosters crowing and the bustling onset of dawn in Damak. The sounds, smells, and sensations of the Terai are still with me today.
The PhD is often described as a lonely road, but it is also a huge collaborative effort. This project was only possible because of the countless people who contributed to and helped realise it – and to them I owe thanks.
Had it not been for Joris Voorhoeve and Cindy Horst, whose support and encouragement gave me the means and the confidence to visit my first refugee camps – Kakuma and Dadaab, Kenya – in 2006, I may never have taken the first steps to conducting field research on the administration of justice in refugee settings.
Barbara Oomen and Willem van Genugten invited me onboard this project even before they knew whether the funding request would be approved. As my PhD supervisors (promotores), they gave me the freedom to shape and reshape my thoughts over the years and to make this book my own, while remaining ever critical, vigilant, and ready to challenge me on my ideas and interpretations.
The Oñati International Institute of the Sociology of Law, its staff, and its students showed me great hospitality and opened my eyes to wealth of legal anthropological research. Maurits Barendrecht and the Tilburg Institute for Interdisciplinary Studies of Civil Law and Conflict Resolution (TISCO) (under the umbrella of the Measuring Access to Justice (MA2J) project) provided valuable assistance and funded part of my field research. Funding from the Netherlands Organisation for Scientific Research (NWO) and Department of European and International Law at Tilburg University is also gratefully acknowledged.
assigned Nepalese sociologist Mrigendra Karki to supervise and assist me during the stay. Mrigendra, who was completing his own PhD at the time, was ever ready to assist and to talk to me about conducting research in Nepal, social movements, religion, and other subjects. Even the government was accommodating, to a large extent. Despite putting me through the somewhat humiliating experience of spending hours – completely ignored – in a waiting room in his office, Basanta Bhattarai of the Government of Nepal’s National Unit for the Coordination of Refugee Affairs (NUCRA) never sent me away without a camp research permit in my hands.
Even though I was in Nepal as an ‘unembedded’ researcher, which meant that I was not hosted by any agency and conducted my research independently, I owe thanks to many of UNHCR and IOM’s staff members in Damak and Kathmandu. My friend and former colleague Karen Read introduced me to Rachel Demas, who was the first UNHCR staff member I met in Damak and who took the time to explain the intricacies of camp social life replete with its hierarchies, caste system, and other particularities and opened the door to the rest of her colleagues. UNHCR’s heads of office, Rianawati Rianawati, Diane Goodman, and Stephane Jacquemet granted me access to their staff and took the time to ask for and listen to debriefings on my research as it related to security, crime, and access to justice in the camps.
In Julie Ward, I found an involved, curious, and concerned Protection Officer with an enthusiasm for access to justice and interest in thinking outside the box. Ricarda Hirsinger, Andreas Kiaby, Els Schapendonk, Ewe Wichayaruangrom, Judith Chan, Bhadrayo Chari, and many others were generous with their thoughts, their time, and their company.
David Derthick from the International Organization for Migration (IOM), somewhat unusually for a head of mission, was open and extremely hospitable from the start. He granted me access to IOM’s guest house, which became my back-up office during days of power outages and – as the town’s only real bar or western restaurant – my haven on many a hot, humid night. Thank you too for our long and interesting conversations on justice and disputes, both in Damak and on the flight we shared to Kathmandu.
I am grateful to everyone in the camps who consented to being interviewed, was willing to talk about the disputes in which they had been involved, or who otherwise shared their stories and their time with me. Thanks to the ladies of the camp canteen, who cooked up a mean breakfast puri and mighty plates of daal bhat for lunch, I always looked forward to meals in the camp. I met many wonderful people in the refugee camps, with whom I greatly enjoyed spending time. Mukti’s lovely wife Sita was especially welcoming and opened her home to me – and sometimes our whole team of research assistants – on numerous occasions. Their daughter Nancy, an ever cheerful, bright-eyed child, was a source of smiles for me as much as she was for her parents and neighbours.
My time in Damak would not have been the same without Dambar, Mina, Sulav, and Subidha – the Nepalese family in whose house I lived – who took it upon themselves to make sure that I was never alone. I fondly recall the many evenings I spent with Rosie and Rachel (with their boundless enthusiasm), Adham, Munther, Son Ha, Dr. Dima, and others I came to think of as friends. Binda Rai, who I befriended on a bus ride to the camps, was a consistent source of banter and laughter during the length of my stay – both in Damak and in the camps, where she worked for LWF. And I am grateful to Ganesh Niraula of Ncell, in whose office I spent many an hour and who called me as soon as a cable internet network was established in Damak – making mine the first house in Damak he connected to cable.
During the trips I made to Kathmandu to renew my research permit, Alex Ghikas, Sanu Sankhu, and Kosta Ghikas (not to forget Damaru, Putali, and Tisan) were my home away from home and a great source of comfort. After completing my field research I returned to the Netherlands, where my colleagues and friends from the fifth floor of Tilburg University’s M building welcomed me back. Maya Nanlohy, who remained on standby to assist from a distance while I was in Nepal and for a long time after that, fixed every unorthodox computer problem I encountered – from needing back-up batteries during load-shedding to assessing the likelihood of laptop fans getting clogged by dust.
Throughout it all, Catz and Geraldine were my rocks. Thank you – jags, family, and friends – for enduring me in my moments of self-imposed exile and for helping me stay somewhat sane.
Many of the people mentioned in this book are no longer in Nepal. Refugees have been resettled to the United States, Canada, Australia, Norway, the Netherlands, and other countries, where they have started new lives. Many of the aid workers have moved on too – to Haiti, Sudan, Kenya, Malaysia, Jordan, Belgium, Denmark… the list of countries is long. Webs of transnational connections continue to grow.
Figure i: UNHCR presence in Nepal at the start of my field
research in 2009 9
Figure ii: Crimes/incidents experienced by survey respondents
between 2006 and 2011 20 Figure iii: Most recent incident experienced by survey respondents 58 Figure iv: First authority to which a dispute was reported 59 Figure v: Last legal authority involved in the resolution of a case 59 Figure vi: Camp population prior to resettlement 80 Figure vii: Average monthly household income in the
Bhutanese refugee camps in 2011 98 Figure viii: Survey respondents according to ethnicity 102 Figure ix: Camp population according to social group 103 Figure x: Perceptions of human rights law among Bhutanese refugees 115 Figure xi: Percentage of cases resolved through different legal
authorities 157 Figure xii: Incidence of domestic violence among survey respondents 169 Figure xiii: Reporting of domestic violence cases by survey respondents 173 Figure xiv: Percentage of DV cases resolved through different
AHURA: Association of Human Rights Activists, Bhutan
ALNAP: Active Learning Network for Accountability and Performance in Humanitarian Action
AMDA: Association of Medical Doctors of Asia APF: Armed Police Force
APFA: Association of Press Freedom Activists, Bhutan BHA: Bhutan Health Association
BNS: Bhutan News Service BPP: Bhutan People’s Party
BRAVVE: Bhutanese Refugees Aiding Victims of Violence BRCF: Bhutanese Refugee Children’s Forum
BRWF: Bhutanese Refugee Women’s Forum BSC: Bhutan State Congress
CBO: Community Based Organisation CDO: Chief District Officer
CeLRRd: Center for Legal Research and Resource Development CMO: Camp Management Officer
CFUG: Community Forest Users’ Group CMC: Camp Management Committee CMO: Camp Management Officer
CMSC: Community Mediation Service Center CVICT: Center for Victims of Torture, Nepal CWT: Community Watch Team
DV: Domestic Violence
INA: Immigration and Nationality Act LWF: Lutheran World Federation NBA: Nepal Bar Association
NGO: non-governmental organisation
NUCRA: National Unit for the Coordination of Refugee Affairs OAU: Organization of African Unity1
PFHR: People’s Forum for Human Rights, Bhutan RBA: Royal Bhutan Army
RCU: Refugee Coordination Unit RGB: Royal Government of Bhutan RSD: Refugee Status Determination
SAARC: South Asian Association for Regional Cooperation SASF: Semi-Autonomous Social Field
SGBV: Sexual and Gender-Based Violence SUB: Student Union of Bhutan
TSASF: Transnational Semi-Autonomous Social Field TPO Nepal: Transcultural Psychosocial Organization, Nepal UN: United Nations
UNGA: United Nations General Assembly
UNHCR: United Nations High Commissioner for Refugees USRAP: United States Refugee Admissions Program VDC: Village Development Committee
VMF: Voluntary Migration Form WFP: World Food Programme
Bhuwani Shankar is 85 years old. He lives alone in a one-room hut in Sector B of Beldangi-2, in the Jhapa District of the Terai region of Nepal. Over the crowing of one neighbour’s rooster and sawing from another neighbour’s wood shop, he tells me that his wife and children – all grown up, by now, with their own families – have recently left him. While he stays on in Beldangi, his family now lives in the United States. Because Bhuwani is not interested in resettlement and his wife would not have been permitted to leave without him without his consent, she divorced him after sixty-six years of marriage. Bhuwani is upset and tells me that he would like to sue the U.S. president, who he holds personally responsible for his abandonment. That he does not know the President’s name or address is a mere detail. As head of the government of the United States, the country that permitted his wife to immigrate without his consent, the President must be to blame.
Beldangi-2 refugee camp lies in a remote corner of Nepal, hidden between forest land and sleepy villages. Leaving the Land of the Thunder Dragon, Shangri-La and ‘gross national happiness’ behind, thousands of Bhutanese refugees fled to India and Nepal in the early 1990s in search of a safe haven from persecution, violence, and discrimination in their home country Bhutan. Those in India were soon deported and the majority of the refugees settled in camps in Nepal, where they would spend the better part of the next two decades. By 2007, seven refugee camps in south eastern Nepal together hosted an estimated 107,000 Bhutanese refugees.
presence of the agencies and their international staff, was marked by one colourful multi-story brick or cement house after another, painted in shades of pastel in varying combinations. A few traditional wooden houses – the type on stilts inhabited by locals in other towns – still stood among them, but they were shrinking in number as their owners replaced them with sturdier structures. There also seemed to be more sari-clad bangle wearing women on the streets than in other towns, more motor cycles, UN vehicles and rickshaws, more bustle, business, and more wealth.
By 2014, the refugee camps that represented the raison d’être of the humanitarian operation in Damak had been in existence for more than twenty years. Nepal refused the refugees citizenship and did not allow them to integrate. Bhutan has not permitted a single refugee to return. Since their flight, the refugees lived in camps established by UNHCR with the assistance of the international community, where they waited for a solution to their plight. In the absence of state protection, essential services were provided by UNHCR and its implementing partners, which simultaneously implemented programmes intended – to the extent possible within the constraints of state regulations – to enhance respect for refugees’ human rights.
The Bhutanese refugee camps in Nepal are the focus of this thesis. As the following sections will show, the findings of this study on dispute resolution, legal pluralism, and human rights implementation in the humanitarian setting of the refugee camps can be extrapolated to inform broader understandings of the way in which human rights norms are introduced, received, and used at the local level.
Transnational communities, transnationalised law?
When I first began writing this book in early 2011, the following message circulated on Facebook:
of international law. By calling for the abolition of racism, the message implicitly embodies the prohibition on racial discrimination – enshrined,
inter alia, in the 1948 Universal Declaration of Human Rights and the 1965
Convention on the Elimination of Racial Discrimination.
This reference to racism is an indirect reference to international human rights law. Human rights accrue to all human beings on the basis of the ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family’.2 They were formulated primarily with the intention of protecting individuals from the ‘tyranny and oppression’ of states, acknowledging that ‘disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind’. Human rights norms are designed to supersede national law. They are expressed in various forms, including in international treaties signed and ratified by states (such as the 1965 Convention on the Elimination of Racial Discrimination) and as norms of customary international law. Many human rights norms have been interpreted and codified by states and have thus become part of legal understandings at the national level. Human rights norms also form the foundations of various forms of soft law, such as guiding principles and/or recommendations.
The influence of the transnational and the spread of international human rights norms is an apt parallel for the topic under discussion in this book: the extent to which refugees’ lives, in a humanitarian setting managed by an international organisation, are influenced by foreign legal norms, including international human rights law.
By circulating the message against racism on Facebook, its proponents used a transnational social network to present it to people all over the world for discussion and support. The example highlights the empirical reality of legal pluralism, understood as the presence of multiple legal orders in a given social field (Griffiths, J. 1986: 3) in the everyday lives of people around the world. Globalization and the post-war order have resulted in an increasing proliferation of forms of law that transcend the nation state, bringing new actors and legal orders – both state and non-state – to the fore. In this international order, human rights have become ‘the lingua franca of global moral thought, as English has become the lingua franca of the global economy’ (Ignatieff 2001: 53).
International organisations – and those that are part and parcel of the United Nations system in particular – are both sources and proponents of human rights norms. However, they interpret these from the perspective of their
2 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948,
own mandates and ‘have their own take on the rule of law, which they bring to the diverse local contexts in which they operate and which can be the source of significant changes’ (Taylor, Stoddard, Harmer, Haver, and Harvey 2012: 9). As they operate in multiple sites across geographical and jurisdictional boundaries, these organisations influence local legal landscapes and introduce legal norms, sometimes in unintended and unpredictable ways. The effects of international organisations can be pronounced, particularly in settings where they have considerable influence, such as development interventions or humanitarian operations. Not only do international organisations have more reach than ever before, but the speed at which global norms and ideas circulate today is unprecedented in history. This has led to dual processes of translation. To an extent that was unfathomable a few decades ago, individuals – and no longer just states or organisations – come into contact with international norms, which they interpret and give meaning at the local level (Rajagopal 2003; Merry 2006a; Merry 2006b; Merry, Levitt, Rosen and Yoon 2010; de Feyter, Parmentier, Timmerman, and Ulrich 2011). The revolutions in information and communications technologies have ensured that these developments are not limited to western or industrialized countries. Over the past decades, the number of internet users has grown exponentially. In 2013 more than 2.7 billion people around the world – roughly 40 percent of the global population – were connected to the internet. Half of all internet users were in the developing world (International Telecommunication Union 2013). By end-2013, Facebook reported having 1.23 billion active users.3 As Franz and Keebet von Benda-Beckmann point out ‘Even where the “local” remains circumscribed in terms of a territorial or geographically bounded site it can no longer be divorced from global processes that have varying effects on the everyday life of individuals, institutions and social groups’ (von Benda-Beckmann, F., von Benda-Beckmann, K., and Griffiths, A. 2005: 9). The potential reach of a message shared through Facebook (should all Facebook users see the message in question) is roughly 1/7th of the world population. Barriers between the global and the local have become blurred.
In refugee camps, the influence of international organisations comes together with highly mobile populations, including refugees themselves and the aid workers who assist them. Following flight, refugees retain ties with relatives and friends who fled persecution alongside them as well as with those who stayed behind in the country of origin. As refugees are resettled from camps to third countries, the web of connections grows. They may also develop close ties with their new countries of asylum. Transnational connections are
3 Facebook (2014): Facebook Newsroom: Key Facts. Retrieved from: http://newsroom.
also brought by international organisations themselves, which work with a combination of local staff and international aid workers – the latter often well-travelled elites who speak multiple languages.
In humanitarian settings, the influence of the foreign is therefore tremendous. If the Facebook statement above were adapted to fit the context of a Bhutanese refugee living in one of the camps in Nepal, it might begin like this:
Your bicycle is Chinese. Your sari is Indian. Your rice is Malaysian, your sugar Brazilian. Your teachers are Bhutanese, the UNHCR staff who run the camp where you live are Japanese, Danish, Swiss, and Kenyan. Your Department of Homeland Security (DHS) officer is American, the head of the Tuberculosis centre where you underwent your last medical check-up before resettlement is Russian. Your son has moved to Arizona, your daughter lives in Norway.
It might also include: ‘You just had breakfast with a Dutch anthropologist (or an American grad student, or a British volunteer with a local NGO).’ Despite the increasing mobility of both people and legal norms, few studies have been conducted on the impacts of transnationalism and globalization on legal constellations in social fields or beyond the national level (von Benda-Beckmann, von Benda-Beckmann et al. 2005).
Taking the grassroots level as its basis, this thesis analyses how norms introduced by the humanitarian regime interacted with customary and other pre-existing legal norms in the Bhutanese refugee camps in Nepal. Subsequent chapters will show how refugees, humanitarian actors, and government personnel forged a new legally plural landscape in the Bhutanese refugee camps, affecting both disputes and their outcomes. An analysis of different disputes in the camps will show how these disputes and their outcomes were influenced by external legal norms, including the human rights norms introduced into the camps by UNHCR and other humanitarian organisations.
Refugee protection and UNHCR’s evolving mandate
Article 1(A) of the 1951 Convention Relating to the Status of Refugees defines a refugee as someone who:
Refugees are assumed to be in need of protection by virtue of their exclusion from the protection of their country of origin. Their precarious legal position, as they fall between the cracks of the state-centred model of governance, has led to their association with exclusion and ‘bare life’ (Arendt 1952; Agamben 1998; Nyers 2006). Refugee law is essentially a palliative system designed to temporarily address the irregularity caused by the refugees’ position outside of the regular protective system of the nation-state.
The 1951 Convention, as amended by its 1967 Protocol, is the most important international treaty regulating refugee protection and sets out the rights of those who have or seek refugee status. These rights accrue to refugees independently of human rights that may be applicable by virtue of other international human rights treaties. As with other human rights treaties, the notion of state responsibility is central to the 1951 Convention. Each of the rights granted to refugees is accompanied by a complementary and unequivocal duty of contracting states. Despite this emphasis on state obligation, however, the majority of the world’s refugees are hosted in developing countries that are unwilling or unable to offer protection. In these countries, refugee camps are run by the Office of the United Nations High Commissioner for Refugees (UNHCR).
UNHCR was established by the UN General Assembly in 1951 as a subsidiary organ under Article 22 of the UN Charter4 and is entrusted with the international protection of refugees.5 Article 1 of the Statute of the High Commissioner for Refugees (1950) endows UNHCR with the function of ‘providing international protection, under the auspices of the United Nations, to refugees who fall within the scope of the present Statute and of seeking permanent solutions for the problem of refugees by assisting governments and, subject to the approval of the governments concerned, private organizations to facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities.’
In 1951, UNHCR was envisaged as a relatively weak organisation with a limited role – a notion that was reinforced by a limited mandate, restrictions on the population of concern to UNHCR,6 and the requirement that
4 See UNGA resolution 319 A (IV), 3 December 1949.
5 Article 1 of the 1950 Statute of the High Commissioner for Refugees, UN GA, 325th
Plenary Meeting, A/RES/428.
6 People of concern to UNHCR included, under the 1951 Convention, those determined to
UNHCR’s mandate be renewed by the UN General Assembly every three (and later five) years. The subsequent expansion of the organisation’s mandate must be seen in light of historical changes that have affected both the number and type of refugees around the world. Where UNHCR’s activities in the 1950s were mainly confined to Europe, the 1960s and 1970s bore witness to various internal conflicts in Africa, leading to large refugee flows within the region. This trend continued into the 1980s – a decade marked by new emergencies linked to the demise of the dual-power structure of the Cold War in the Balkans, Great Lakes, Liberia, Somalia, and Northern Iraq. The new conflicts that emerged at the end of the bipolar world order were accompanied by sizeable refugee outflows. International failure to provide durable solutions for these refugee crises resulted in the establishment of large camps, often in refugees’ regions of origin. The increase in the number of camps ‘left UNHCR, not necessarily willingly or happily, with responsibility to co-ordinate a worldwide mini-empire with a population numbered in the millions’ (Gilber 1998: 359-60).
Although humanitarian aid is premised on a presumption of transience, many refugee camps, like the Bhutanese camps in Nepal, have ceased being temporary places. In humanitarian lingo, these long-standing refugee situations are referred to as ‘protracted’. Loescher and Milner define protracted refugee situations loosely as those ‘which have moved beyond the initial emergency phase but for which solutions do not exist in the foreseeable future’ (Loescher and Milner 2009). UNHCR considers a refugee situation to be protracted when it has been in existence for five years or more, without immediate prospects of a ‘durable solution’. The label was initially reserved for populations exceeding 25,000 persons.
In 2009, UNHCR’s Executive Committee (EXCOM) issued its first conclusion on protracted refugee situations, in which it determined that a quantitative restriction was not necessary for a refugee situation to qualify as protracted.7 By this time there were well over thirty protracted refugee situations in the world, with an average duration that had doubled in only a decade. The majority were located in poor and unstable regions in Africa and Asia, and most refugees in protracted situations lived in camps that were established in the early 1990s (Loescher, Milner, Newman and Troeller 2008).
As refugee influxes slowed and increasing numbers of refugee situations became protracted (transcending initial ‘emergency periods’ to enter a ‘care and maintenance phase’), attention within the humanitarian industry shifted from a focus on immediate needs such as housing, water/sanitation, and
7 UNHCR EXCOM (2009): Conclusion on Protracted Refugee Situations, No. 109
health care to a longer term, more developmental approach that addressed multifarious aspects of refugees’ everyday lives – including issues that touch on social behaviour, law, and dispute resolution. As Gilber (op cit: 360) noted:
While the management of large-scale relief programs was not envisaged by UNHCR’s Statute, the provision of assistance has come to play an important role in the organization’s efforts to fulfil its mission. Food, shelter, health care and other forms of assistance are essential to the survival and safety of displaced populations, and constitute a vital form of human rights protection in their own right, especially in situations where civilian populations are subject to deliberate deprivation – including starvation – by the parties to the conflict.
With this shift in the nature of refugee reception, UNHCR transformed from ‘an agency whose job was, in large measure, to serve as trustee or guardian of refugee rights as implemented by states to an agency that is now primarily focused on direct service delivery’ (Hathaway 2002: 24). Today, the provision of humanitarian assistance is a fundamental part of UNHCR’s protection mission (UNHCR 1998, para 18).
In time, the notion of ‘international protection’ evolved correspondingly to include care and maintenance, human rights, and even development-related components. In a broad sense of the word, the provision of ‘protection’ currently comprises such diverse activities as the provision of shelter, food, health care, education, human rights training, and scholarship opportunities for university attendance, the arrangement of elections for refugee leadership, the organisation of opportunities for travel outside camps in case of urgent needs such as hospital or funeral attendance, voluntary repatriation schemes or programmes for migration to third countries in the form of resettlement, and self-reliance projects (such as micro-financing and other livelihoods initiatives). By providing essential services, the agency seeks to guarantee respect for refugees’ economic, social, and cultural rights. It also facilitates the protection of other human rights, often by actively pursuing social change in beneficiary groups – for instance through a diverse range of initiatives that may be aimed at anything from peace building to the empowerment of vulnerable groups, efforts to promote gender equality, or the eradication of ‘harmful traditional practices’.
a result, ‘instead of just being responsible for the protection of refugees, UNHCR and its implementing partners actually become responsible for the whole administration of very large populations – totalling 50,000, 100,000 or even 200,000 people – and the provision of humanitarian assistance to them’ (Pallis 2006: 885). In 2010, 30 percent of the world’s 10.55 million refugees were living in camps.8 Nearly all of these camps were managed by UNHCR and its network of implementing partners.
The scope of UNHCR’s new responsibilities for the administration of camps and the provision of assistance within them highlight the extent of the agency’s control over day-to-day life in these settings – a feature that becomes increasingly relevant as humanitarian situations cease to be ‘temporary’ phenomena and endure over extended periods of time. Not unexpectedly, this resulted in the ‘widespread perception that [UNHCR] was a surrogate state, complete with its own territory (refugee camps), citizens (refugees), public services (education, health care, water, sanitation, etc.) and even ideology (community participation, gender equality)’ (Slaughter and Crisp 2008: 132). This further weakened the notion of state responsibility, ‘while UNHCR assumed (and was perceived to assume) an increasingly important and even pre-eminent role’ (ibid: 132) in refugee protection. Indeed, the extent of UNHCR’s actual responsibilities today is reminiscent of other situations in which the United Nations has used its clout to by-pass nation states and take on roles ordinarily reserved for sovereign states, as it did in Kosovo and East Timor under Vieira de Mello (Power 2008). Academics have been quick to point out the extent of the UNHCR’s power, describing camps as ‘total institutions’ (Harrell-Bond 2000) in which UNHCR operates as ‘de-facto sovereign’ (Wilde 1999).
Protractedness: A humanitarian imperative for understanding law in camps
By end-2012, an estimated 6.4 million refugees were believed to be in protracted refugee situations in 25 different countries around the world.9 The corresponding trend of prolonged encampment has been met with scathing critiques from activists and forced migration scholars (Crisp 2000; Jacobsen 2003; Loescher and Milner 2005; Verdirame and Harrell-Bond 2005; Loescher, Milner et al. 2008; Milner and Loescher 2011). In the late 1990s and early 2000s, the prevailing discourse portrayed refugee camps in terms that highlighted their anomaly as ‘states of exception’ (Agamben
8 UNHCR Statistical Yearbook 2010. Retrieved from http://www.unhcr.
org/4ef9c8d10.html in June 2013.
9 UNHCR Statistical Yearbook 2013 (p. 23). Retrieved from: http://www.unhcr.
20
1998; Malkki 2002), ‘legal islands’ (Griek 2006), or ‘non-places’ (Diken and Laustsen 2005), where people were are left in a legal limbo that deprives them of the ‘right to have rights’ (Hanafi and Long 2010).
As a result, refugee camps ‘have become a highly visible symbol of failed human rights campaigns’ (Holzer 2013: 838). Accounts of insecurity in refugee camps are pervasive and highlight crime, the presence of military elements and (forcible) recruitment of refugees into rebel and military movements, and high rates of sexual and gender-based violence (Zolberg, Suhrke and Aguayo 1989; Jacobsen 1999; Milner 2000; Lischer 2001, 2005; Halperin 2003; Muggah 2006; see also UN Security Council Resolution 1208 (1998)). According to Jacobsen:
In recent years, petty and organized crime have flourished in refugee camps. Few camps are organized to address these problems, and most camps lack an effective system of law and order. Crimes go unpunished because there is no adequate force to back up what rule of law does exist. Perpetrators are able to elude justice by hiding amongst the refugee population, or camps fall under the control of political or military elements, and civilian authority and sources of law and order are undermined. Refugees are then more likely to be deprived of their rights, and subject to violence and intimidation. (Jacobsen 2001: 14) Survey research conducted among 746 crime victims in Beldangi-2 and Beldangi-2 Extension camps10 in Nepal revealed that in the five years prior to the survey, refugees had experienced high rates of theft, verbal and physical violence, vandalism and polygamy. There were also instances of rape, sexual abuse, and loan disputes (known as lin-din cases).
Figure ii: Crimes/incidents experienced by survey respondents between 2006 and 201111
10 This survey is introduced in more depth in the section of this chapter entitled
‘Methodological Approach’.
11 N=746. Because one person may have experienced more than one incident, the total
Punt toevoegen na voetnoot 46 Figure i = ok Figure ii Figure iii Figure iv 129 273 131 315 414 93 55 2 18 15
Crimes and disputes in the Bhutanese camps
number of respondents 56 164 39 200 180 61 17 1 6 12
Most recent dispute experienced by respondents
number of respondents291
21 4 4 7 6 5 7 52 6 9
First authority to whom a case was reported
Several authors have related the insecurity in refugee camps specifically to the weak rule of law in these environments. Jacobsen (1999: 3) named the breakdown of law and order and the crime and associated problems to which this gives rise as one of the top three sources threatening the security of camps and the safety of camp-based refugees.12 In Kenya, Crisp (2000: 20) similarly noted that a ‘root cause of the insecurity in Kakuma and Dadaab [refugee camps] is to be found in the problem of impunity. For in both areas, the rule of law is weak and the perpetrators of violence are rarely held accountable for their actions.’ According to Crisp, impunity derived from several related issues: the social organisation and culture of the refugee and local populations, the limited capacity of local security services, and the weakness of the Kenyan judicial system. The phenomenon was also observable in other camps (Da Costa 2006). Many governments, it turned out, were decidedly uninterested in prosecuting crimes taking place in refugee camps. Moreover, very few refugees appeared to be turning to host country legal systems.
An overlapping body of literature on refugee camps concerns communities and social relations. These studies point to the adverse effects of confining people to camps and the prolonged periods of life in limbo that result when refugee situations become protracted. Summing up some of the consequences of prolonged encampment, Adelman (2008: 8) pointed to ‘material deprivation, psychosocial problems, violence, sexual exploitation, exploitative employment and resort to negative coping mechanisms’. Long-term encampment was also believed to lead to the destruction of solidarity, social bonds and social support structures in camps and the absence of a real sense of ‘community’ in refugee camps due to a lack of social cohesion and autonomous action. Agier (2008: 58) wrote that in camps ‘neither work (as economic activity) nor politics (as autonomous action) is able to develop and consolidate itself’. Instead, camps remain bare towns in which refugees experience a kind of ‘lasting and separate non-development’ (ibid: 59). Crisp (2000: 25) argued that after flight, refugee see ‘their social structures and cultural norms steadily eroded by the experience of exile’.
It cannot be denied that insecurity is a real problem in many refugee camps and that human rights protection is often lacking in these spaces. However, as protracted refugee situations endure over time, camps take on a developmental, almost urban character (Wilde 1999; Agier 2002; Jansen 2011). New, stable social structures are established by the communities that form in many of these settings. Refugees in most long-standing camps
number of incidents recorded is larger than N.
12 The other two sources of insecurity mentioned by Jacobsen are external military
have established their own legal systems that operate independently, usually without assistance from states or UNHCR, and adjudicate disputes that take place among members of the refugee population (Da Costa 2006; Griek 2006). Both crimes and breaches of social norms are addressed through these systems. This suggests that shared sets of norms can and do evolve in refugee communities and that enough consensus can exist within camps to enable refugee-run legal systems to adjudicate conflicts and disputes involving these norms. When state systems are absent or inaccessible, refugee legal systems may be the only forums through which refugees are able to access remedies for problems they encounter, crimes committed against them, or violations of their rights.
The administration of justice in refugee camps
As Holzer (2013: 839) has pointed out, refugees living in camps often engage extensively with different facets of the law. Over the past two decades, UNHCR has devoted increasing attention to the administration of justice and rule of law in refugee camps. The combination of insecurity, pervasive rule of law gaps in camps, and establishment of independent legal systems that operate largely beyond UNHCR and host state control has undoubtedly played a role in this change.
The administration of justice is fundamental in ensuring respect for human rights, particularly in refugee contexts (Purkey 2011). Making the connection between the rule of law and the fulfilment of human rights, UNHCR’s Executive Committee found in 1996 that ‘for states to fulfil their humanitarian responsibilities in reintegrating returning refugees… an effective human rights regime is essential, including institutions which sustain the rule of law, justice and accountability’, and called upon UNHCR ‘to strengthen its activities in support of national legal and judicial capacity-building’.13 By 1997, UNHCR indicated that it was playing an active role in this ‘entirely new area’ of work for the organisation. Examples of the type of support provided by UNHCR include logistical support and office equipment to Ministries of Justice and other parts of judicial systems, organising trainings on legal issues and human rights, providing training and technical support to judges, government officials, law enforcement, etc. (UNHCR 1997: 14).
Involvement in the legal field was not new for UNHCR. Since its establishment, the agency’s mandate has comprised a strong standard-setting role. Through its contributions to the development of international,
13 UNHCR EXCOM (1996): ‘UNHCR’s role in national legal and judicial capacity
regional, and national law, UNHCR has gained intimate knowledge of the legislative process. Since its inception, it has contributed to the drafting and adoption of various international conventions, including the 1967 Protocol Relating to the Status of Refugees, the 1967 UN Declaration on Territorial Asylum, and the 1966 Bangkok Principles Concerning Treatment of Refugees (O’Hara 2005). By providing information, textual suggestions, comments, and advice UNHCR has also influenced the final texts of regional refugee rights instruments such as the 1969 OAU Convention, the 1984 Cartagena Declaration, and the EU Directives on Asylum and Refugees. In many countries, UNHCR has played a similar role in the formulation and adoption of domestic law pertaining to refugees.
Through its experience with refugee status determination (RSD), UNHCR has also grown accustomed to a role as arbiter. In many states, UNHCR carries out the legal assessments that ultimately determine whether applicants will receive official recognition of their status as a refugee. Although there has been considerable criticism of the way in which UNHCR carries out this procedure – including allegations that it has violated international norms (Alexander 1999; Kagan 2006a; Kagan 2006b) – UNHCR’s involvement in conducting RSD has required it to become familiar with legal standards such as those relating to due process and the right to appeal (UNHCR 2005). Both RSD and the agency’s history of involvement in standard-setting have undoubtedly helped prepare and equip UNHCR for its present involvement in the administration of justice, which is a considerably newer area of operations. To improve its understanding of the legal systems that operate in refugee camps and the obstacles faced by refugees in accessing justice, UNHCR commissioned a study on the administration of justice in camps in 2003. The resulting study, completed by Rosa da Costa in 2006, was the first to provide an overview of the legal systems refugees used to address conflicts and crime in camp settings. Da Costa made explicit mention of legal pluralism, observing that ‘the complex interface of local, national, international, and refugee-specific values and justice mechanisms poses important challenges to addressing the administration of justice in camps’ (Da Costa 2006: 9). While Da Costa’s study was insightful in highlighting of obstacles to access to justice, it did little to describe these interfaces or the ways in which refugees’ traditions interacted with national law and international human rights norms. Few in-depth studies have examined what these normative interfaces look like, how potentially conflicting legal systems may affect access to justice for refugees, or how UNHCR’s justice interventions enhance respect for refugees’ human rights.
1. What constellations of legal pluralism can be observed in the UNHCR-run Bhutanese refugee camps in Nepal?
2. How do refugees, humanitarian agencies and other actors introduce legal norms to humanitarian settings?
3. How does the introduction of foreign legal norms (including international human rights law) in humanitarian settings influence disputes, their resolution, and access to justice for refugees?
This research departs from the notion that a deep, anthropological understanding of legal pluralism in refugee camps settings – and of the legal structures that operate in these camps and the ways in which disputes are resolved through these structures – is crucial for comprehending how to improve access to justice and respect for human rights for refugees.
process of transition within a cultural enclave, but in the dramatic context of uprootedness where a people’s quest for survival becomes a model of social change’ (Harrell-Bond and Voutira 1992: 9).
To answer the third research question, this research is focused on disputes. Disputes are understood as disagreements that stem from the perception of an individual or group that rights have been infringed, and which are subsequently brought before a third party or raised to the public arena for resolution (Merry 1979: 40). As people negotiate outcomes to disputes, they often explicitly make reference to legal norms: ‘In disputes, legal arguments, rights and obligations become discursive and are most clearly articulated by the contending parties, as well as by a decision-making authority.... the process of negotiating and decision making shows us which are the relevant dispute processing institutions, which of the often contradictory versions of law are selected as being valid, and in which way abstract rules are concretized in a specific situation’ (von Benda-Beckmann, F., von Benda-Beckmann, K., and Spiertz 1997: 229).
For this reason, early legal anthropologists considered disputes to be a crucial source of knowledge about state law and unwritten rules in non-Western legal orders (Llewellyn and Hoebel 1941; Nader and Todd 1978; Cotterrell 1992). Although the study of disputes has been refocused over time, disputes continue to be regarded as sources of information about law and legal interaction in contemporary legal anthropological studies (i.e. Oomen 2005; Thomas 2013).
As described above, refugee camps are highly transnational settings. A growing body of literature in the field of socio-legal studies has recognized the impacts of mobility and transnationalism on legal constellations as a diverse and intensely local experience. New legal constellations are formed across national, regional, and local boundaries, in accordance with different cultural, social, and political traditions and varying power hierarchies (von Benda-Beckmann, F., von Benda-Beckmann, K. et al. 2005). Describing the use of human rights by non-westerners, Wilson (2007: 348) stated that: ‘Cultural appropriations of western law by local groups are fundamentally creative and represent a pluralistic form of resistance to global homogenization (and, read, legal centralism)’. Merry (1996: 68) used the term ‘vernacularisation’ to describe the process through which people translate human rights by developing their own cadences and vocabulary to talk about international norms, and mobilizing these in a way that frequently joins indigenous notions with global law. It is clear that the impacts of transnationalism – which cannot be divorced from the humanitarian context – must play a role in a discussion on the translation and impact of legal norms. For this reason, significant attention is paid to the third country resettlement programme implemented in the Bhutanese refugee camps, the new forms of law this has introduced to family-level disputes, and the changes that could be observed in these disputes as a result.
The findings of this research are illustrative in highlighting ways in which the introduction of new, external forms of law can influence existing practices in local settings, even when these are interpreted as ‘custom’ or ‘tradition’. Answers to the second research question address both the ways in which external legal norms (such as human rights law) are introduced to local contexts and the changes these norms undergo as a result. Answers to the third research question will provide insight into the impact of new external norms on disputes and access to justice in local settings.
Structure of this book
This chapter has introduced the research setting and the humanitarian imperative for understanding law in humanitarian settings, particularly when these become protracted.
Chapter III maps the humanitarian space of the refugee camps. To place the disputes that are described in subsequent chapters in context, the first sections of the chapter introduce the Bhutanese refugees and the conflict that led to their flight to Nepal. The remainder of the chapter describes the establishment of the camps, the provision of services, the organisation of the camp administration and economy, and the re-establishment of a sense of community among the Bhutanese refugees. It highlights refugees’ involvement in shaping the social and geographical environment of the camps in which they live and the community that is established in these settings as a result of the shared experiences among refugees. By describing the room for negotiation between refugees and humanitarian staff, this chapter emphasizes both the constraints refugees face and their ability to craft solutions that deviate from the rules imposed upon them.
An understanding of the different dispute processing forums and legal and quasi legal venues that were accessible to Bhutanese refugees is necessary to comprehend the role that different forms of law play in camp disputes. Chapter IV begins by introducing the three-tiered, mediation-based legal system established and operated in the camps by the Bhutanese refugees themselves, largely free from outside interference. This system is placed in its historical context, highlighting areas of continuity with the past as well as areas where the mediation system was transformed to meet the requirements of the new environment in which it was used. Following this discussion of the refugee legal system, the roles of main actors and institutions of the Nepalese legal system in addressing refugee disputes is described.
In Chapters IV, V, and VI the relevance and role of external legal norms in the resolution of camp disputes is illustrated in an ascending manner. Chapter IV outlines the role of mediators and committees of respected elders in solving disputes in the camps, showing the way in which individuals – with various beliefs – can contribute to organic understandings of law within the camps. The chapter concludes with a description of three cases that highlight the interconnectedness of the refugee legal system (the camp mediation system) and Nepalese judicial and law enforcement actors and institutions.
with refugees’ cultural and personal values and religious beliefs as norms were debated during mediation sessions, an in-depth presentation is given of a domestic violence case discussed before the Counselling Board. This is followed by a presentation of three cases that illustrate different paths taken in domestic violence cases, in spite of UNHCR rules and Nepalese law. Chapter VI describes the impact of project and foreign law through the third country resettlement programme on legal practices in the camps. Focusing on family cases in particular, it highlights the impacts of mobility and transnationalism on disputes and legal understandings in the camps. First, a polygamy case is presented, along with the rules pertaining to minor marriages in the different bodies of law that make up the legally plural context of the camps. The discussion on polygamy is followed by a similar discussion on minor marriage. In both cases, family disputes were reframed and transformed in light of new requirements that stemmed from foreign migration law, as refugees made concerted efforts to reconcile their desire to leave the camps with the obligations and rules that accompanied the resettlement programme.
The notion of legal pluralism originated in the early twentieth century in reaction to prevailing exclusionary, state-centric views of law. In a seminal article on legal pluralism, Griffiths attacked the legal centralist notion that law was ‘an exclusive, systematic and unified hierarchical ordering of normative propositions’ emanating from the state. Instead, he argued, legal reality was inherently plural; a hotchpotch of norms that could emanate both from governmental and non-governmental sources (Griffiths, J. 1986: 3). Griffiths criticised lawyers and social scientists for suffering from ‘a chronic inability to see that the legal reality of the modern state is not at all that of the tidy, consistent, organised ideal so nicely captured in the common identification of “law” and “legal system”, but that legal reality is rather an unsystematic collage of inconsistent and overlapping parts, lending itself to no easy legal interpretation, morally and aesthetically offensive to the eye of the liberal idealist, and almost incomprehensible in its complexity to the would-be empirical student’ (Griffiths, J. 1986: 4). A decade later, he concluded that law everywhere is ‘fundamentally pluralist in character’ and ‘anyone who does not [accept this] can safely be ignored’ (Griffiths, J. 1995, cited in Tamanaha 2008: 395). As Tamanaha wrote more recently, ‘There is, in every social arena one examines, a seeming multiplicity of legal orders, from the lowest level to the most expansive global level’ (Tamanaha 2008: 375).
Early studies of legal pluralism focused on the co-existence of state and customary law in non-Western societies. In the 1970s, these studies began to shift their attention to legal orders in industrialised countries. The term legal pluralism was, during this period, used primarily to draw attention to the recognition of customary norms in state law, or the coexistence of customary or traditional institutions (even if not officially recognised) alongside state institutions (Tamanaha 2008: 390). Griffiths, J. (1986) and Merry (1998) have written excellent overview articles on the history of the study of legal pluralism, which I will not rehash in detail in this book.
More interesting to note is the direction in which contemporary studies of legal pluralism have been developing. Contemporary legal pluralists work in a context that demands increasing attention for the impacts of globalisation on local legal constellations. This has refocused the study of legal pluralism to new themes in which the transnational is highlighted: the growing cessation of state sovereignty to international and regional bodies such as the United Nations, World Trade Organization, or European Union, the invocation of human rights norms by non-governmental organisations and others in opposition to state law, the growth of trans-governmental networks with regulatory power, and the consequences of migration and transnational communication (von Benda-Beckmann, K. 2001; von Benda-Beckmann, F., von Benda-Beckmann, K. et al. 2005; von Benda-Beckmann, F. and von Benda-Beckmann, K. 2007; Tamanaha 2008; Provost and Sheppard 2012). This chapter will introduce the legally plural context that will come back throughout this work in varying constellations. Different types of cases will show how different bodies of law come to bear upon everyday life in the Bhutanese refugee camps in varying constellations, touching upon social issues ranging from family relations to crime.
II.1 Delimiting law in a refugee camp
Almost since its inception, the study of legal pluralism has been plagued by a lack of conceptual clarity surrounding its use of the term ‘law’. In opposition to formalist, state centric models that regard law as emanating from the state and based on written texts, legal pluralists have used broader views of law. Early conceptualisations of law used by legal anthropologists incorporated various types of social norms (e.g. Malinowski 1926; Moore 1973; Griffiths, J. 1986) and were criticised on the basis that almost anything could count as law.
social arena.’ Like Tamanaha, I avoid the conceptual discussion over what is law (and what is not) by accepting as ‘legal’ what local social actors identified as such.
The vast majority of refugees in the Bhutanese camps had no legal background but used the word kanuun (which translates to ‘law’ in Nepali)14 to refer in general terms to many of the rules with which they came into contact and which influenced their lives. Sometimes, they specified what they believed were origins of law – i.e. ‘Nepalko kanuun’ (the law of Nepal). As one man explained, ‘different countries have their own laws. Some of the INGOs and NGOs, they have their own law. As per UNHCR’s law, my daughter married that boy and I had to go and tell them that she married. Because I did not do that, I went against the law of UNHCR. When UNHCR found out, my [resettlement] process was stopped.’15
To the Bhutanese refugees, law could emanate from sources other than the state. Recognising law, I realised, required openness to the different shapes that law and legal phenomena may take and a willingness to look beyond traditional labels and seek ones that are more appropriate. If the Bhutanese understood humanitarian policies and rules as ‘law’, then a study of the interaction of legal norms should do so as well.
State law
The primary responsibility for maintaining the rule of law and ensuring security rests with states. Because they are located on Nepalese territory the Bhutanese camps are subject to Nepalese law – bringing the full spectrum of Nepalese civil and criminal law to bear upon refugees in the country. Although Nepal has not ratified the 1951 Convention Relating to the Status of Refugees it does, in accordance with Article 16, grant refugees full access to Nepalese courts.16
Nepal was never colonised and has been described as having a ‘hybrid system’ of law that has been influenced by different legal traditions, both western and non-Western. It was the French Napoleonic Code that ultimately inspired
14 Kanuun or qanun is an Arabic word for law. It entered the Arabic language in the early
middle ages and was derived from ancient Greek terminology for regulations of land taxes. In the early Islamic period, the term came to mean ‘regulations laid down by the Ruler independently of Sacred Law’. (Arjomand 1989: 116). It has since been used to denote law in many different languages.
15 Observation of a Counselling Board Case, Beldangi-2, 1 April 2011.
16 Article 16 holds that ‘[a] refugee shall have free access to the courts of law on the
Nepal’s prime minister to codify Nepalese law as a single ‘country code’, the Muluki Ain, in 1854 (Heckendorn Urscheler 2012). This was done through a state-driven process of Sanskritisation and the Hindu legal tradition dominates Nepal’s formal law.
In addition to Nepalese law, the conduct and behaviour of camp-based Bhutanese refugees in the country is further regulated by a set of quasi-legal “camp rules” established by the government coordinating body for refugee affairs (the Refugee Coordination Unit, or RCU) in cooperation with UNHCR in 1992 and ‘designed to enforce Nepalese law in the camps and to regulate issues as varied as the suspension of rations for missing refugees to family planning’ (Muggah 2005: 157). These camp rules, although not strictly law but policy, have similar effects.
As subsequent chapters of this book will show, Nepal is not the only state whose legal system affects the refugee camps. Through a third country resettlement programme implemented in the Bhutanese camps in 2008, foreign migration law has had increasing relevance for the camps.
Customary norms and local law
Much social interaction in the Bhutanese refugee camps was premised on understandings of tradition and regulated through a combination of Hindu and Buddhist religious norms.17 Tamanaha (2008: 398) uses the term ‘customary normative systems’ to refer to ‘shared social rules and customs, as well as a social institution and mechanisms, from reciprocity, to dispute resolution tribunals, to councils of traditional elders,’ and points out that in some societies, these systems are indistinguishable from religious normative systems, which can also be considered aspects of culture (Tamanaha 2008: 398).
In a legal anthropological study of Sekukhune, South Africa, Oomen (2005: 210) argued that there was ‘no such thing as a “system” of customary law, [but] there is a pool of shared values, ideas about right and wrong and acceptable sources of morality that are commonly acknowledged and rooted in local cultural orientations.’ In traditional contexts, rules are often flexible and scholarship on customary law has shown that the ‘customary’ character of customary law, which has also been described using such terms as ‘traditional’, is not necessarily ‘customary’ at all. Instead, researchers found that many elements of what is presented as tradition or custom is either simply invented, or has undergone substantial changes over time (Snyder 1981; Hobsbawm and Ranger 1983; Spiertz 1991).
17 The administration of justice based on Hindu beliefs dates back to ancient times in
Because ‘customary law’ is defined by lawmakers, judges, and experts in most legal systems, legal anthropologists have found it necessary to distinguish between ‘lawyers’’ and ‘people’s’ customary law (von Benda-Beckmann, F., von Benda-Beckmann, K. et al. 1997: 221). To use a terminology that ‘does not imply a claim about centuries-old and only very slowly changing customs, nor about the supposed “purity” of these customs’ (Hoekema 2005: 10) von Benda-Beckmann and others have opted for the term ‘local law’ to denote the form of law that people use on the ground, or in Moore’s semi-autonomous social fields.
As John Griffiths (2003: 1) posited in his seminal article “The Social Working of Legal Rules”, ‘semi-autonomous social fields are not only the social locus of rule following but also of the processes by which what ultimately become “legal” rules emerge.’ New rules (or interpretations of rules) emerge in camps as existing rules are applied and debated. Local law is inherently flexible and allows for the incorporation or rejection of norms with different provenances, based on different power relations. Customary law, or different constructions (or older or newer versions) of it, often constitutes an important part of ‘the ingredients from which local law is shaped’ (von Benda-Beckmann, F., von Benda-Beckmann, K. et al. 1997: 228).
‘Local law’ is an intrinsically more suitable term to describe the norms that are applied by unofficial legal systems in refugee camps. Although refugee dispute resolution systems, which Da Costa (2006: 23) defined as ‘structured mechanisms established and/or run by refugees with a specific mandate (formal or informal) to resolve disputes within the camp,’ were found in all 13 countries she studied, these systems were organised in different ways. While some were described as specific to certain sub-groups within camps, others were derived from religious structures, or run by elders, tribal, clan, zone or camp leaders. In refugee camps with heterogeneous populations, local dispute resolution mechanisms may place less importance on customary norms in favour of shared norms between disputing parties from different origins.
International human rights law
